On 08 February 2016, ARTICLE 19 submitted our response to the UN Special Rapporteur on free expression’s call for comments on the role of the private sector in the digital age.
In our submission, ARTICLE 19 addresses the following issues:
- The categories of actors in the digital sector whose activities implicate the freedom of opinion and expression;
- The main legal issues raised for freedom of opinion and expression within the digital sector; and
- The conceptual and normative work already in place to develop corporate responsibility and human rights frameworks in these spaces, including governmental, inter-governmental, civil society, corporate and multi-stakeholder efforts.
- We also provide country specific information (Brazil).
We further highlight the following key concerns for freedom of expression arising out of the regulation of content by private actors:
- Lack of transparency and accountability in relation to content removals and/or the application of filters under Terms of Service leading to inconsistency and/or bias;
- Lack of procedural safeguards and access to an effective remedy when legitimate content is wrongfully removed or filtered, including imbalance of powers, unfair contract terms and restrictions on access to justice forcing users to abandon legal complaints;
- Failure to respect free expression standards (as provided under international law) in Terms of Service, turning some of these quasi-public spaces into much more sanitized environments, where freedom of expression is not limited by principles of necessity and proportionality but rather by propriety;
- Circumvention of the rule of lawwith corporate actors complying, whether or not voluntarily, with government requests to take down, filter or block content or services, resulting in users being deprived an opportunity to challenge the legality of content restrictions ; this is compounded by the lack of transparency in relation to the way in which private companies may be amending their Terms of Service to comply with national legislation and ease the removal of content;
- Lack of transparency and neutrality in the way in which information is presented (e.g. search results, news feeds on Facebook);
- The potentially negative impact on pluralism of partnerships between internet intermediaries (e.g. Facebook, Google News) and content industries such as newspapers or between Internet and telecommunications companies such as in the debate on net neutrality.
We further express concern at the growing role of data protection law as a means to restrict access to information, which is legitimately in the public domain, for instance in the context of the ‘right to be forgotten’.
As we eagerly anticipate the UN Special Rapporteur’s report on the role of the private sector in the digital age, we look forward to support his work in this important area.
 See EDRi, Human Rights and Privatised Law Enforcement, 25 February 2014